State v. Turnage , 107 S.C. 478 ( 1917 )

July 5, 1917. The opinion of the Court was delivered by The appellant was convicted of the murder of Eugene Rainey, a negro hack driver. The dead body of Rainey was found in the woods near the city of Sumter, and showed evidence of death from a blow on the head. The automobile, which had been in charge of the deceased, was found not far from Bennettsville. The automobile was driven from Sumter to Bennettsville, the morning after the killing, by the appellant. The appellant admits that he drove the car from Sumter to Bennettsville, but stated that one Peter Andrews had offered to take him to Bennettsville in his car, but had come to him a little later and asked appellant to drive the car, and he (Andrews) would go on the train; that he was offered work in or near Bennettsville, and had gone there, where some members of his family lived, to get the work.

1. The first exception is: "His Honor erred in charging the jury as follows: `I charge you that, if the explanation of the flight be reasonable, then allow it full force. If it is not reasonable, you need not apply it at all. That it was flight, if there was flight, the State must prove. But if you are satisfied that flight has been proven, and are satisfied beyond a reasonable doubt, then, if the defendant has made any explanation, you consider whether or not this explanation is reasonable. If it commends itself to you as true, why then that does away with the inference to be drawn against him by reason of the flight, or by reason of the fact that he left the community, if his explanation is both reasonable and true, and if you cannot say beyond a reasonable doubt. If it is unreasonable, untrue, why then discard that phase of the case. That is to say, gentlemen, consider flight as a circumstance against the defendant.'"

There are five allegations of error in this charge. One good reason for sustaining this exception is enough:

"If it commends itself to you as true, why then that does away with the inference to be drawn against him by reason of the flight, or by reason of the fact that he left the community."

"Leaving a community" and "flight" are not synonymous terms. Bouvier, Law Dictionary:

"Flight. In Criminal Law. The evading the course of justice, by a man's voluntarily withdrawing himself. 4 Bl. Com. 387."

The appellant admitted that he left Sumter, the place of the crime, the morning after the crime. He denied that he was evading arrest. Every one who leaves a community, after a crime has been committed therein, is not to be held to trial and required to prove a reasonable and true reason for going, on pain of conviction for the crime. Flight or evasion of arrest is a circumstance to go to the jury, and that is far enough to go. See Alberty v. U.S., 162 U.S. 499,16 Sup. Ct. 864, 40 L. Ed. 1051.

2. The appellant complains that the trial Judge refused to allow one of the witnesses to answer this question: "Going back a little bit, didn't your brother get in a shooting scrape several years ago?"

The appellant wanted to show the hostile attitude of the witness. The question did not suggest that result, and the answer was properly excluded. This exception is overruled.

These two exceptions are the only ones argued, and the others are deemed abandoned.

The judgment is reversed and a new trial ordered.

MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur in the opinion of the Court.